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SANTA MONICA, CA – A proposed settlement in Europe’s antitrust investigation of Google that establishes a monitor for five years to ensure that the Internet giant keeps its promises under the deal, does not actually obligate Google to do anything in response to a request from the “Monitoring Trustee,” Consumer Watchdog said today and called for the “deeply flawed” proposed settlement to be modified.

In a letter to Commission President Jose Manuel Barroso, the U.S. public interest group’s Privacy Project Director John M. Simpson wrote:

“Much has been made of the idea that Google will be under the supervision of the monitor for five years to ensure the company fulfills the Commitments. However, to our amazement the Commitments do not actually obligate Google to do anything in response to a request from the Monitoring Trustee. Shockingly, the Commitments leave the decision about whether to comply entirely up to Google.”

Consumer Watchdog’s letter quoted paragraph 67 of the Commitments that were made public by Google. The paragraph reads:

“VI.5 Duties and Obligations of Google
67. Google may comply with any specific request made by the Monitoring Trustee in its sole discretion. The Commission reserves the right to exercise its powers of investigation set out in Section V of Council Regulation (EC) No 1/2003 should Google decline any request made by the Monitoring Trustee.” – Commitments in Case Comp/-3/39.740, Jan. 31, 2014, Page 19.

“In other words Google may choose to ignore any request and the Commission may launch an investigation. But, that is exactly what the Commission has been doing for the past three years – investigating Google,” wrote Simpson. “This provision hardly seems a likely means to settle the antitrust case; rather it portends further stalling and foot-dragging on the part of the Internet giant.”

Annex 4 to the Commitments at first appears to require that Google give the Monitoring Trustee the information and cooperation necessary to do his job of ensuring that the Commitments are kept. However, as Simpson wrote in the letter, Annex 4 also does not actually put constraints on Google:

“Paragraph 9 eviscerates any apparent constraint or obligation on Google by referring to the earlier paragraph 67 of the Commitments, which allows Google – and Google alone – to decide what requests from the Monitoring Trustee need be honored.”

“9. Google’s duties and obligations pursuant to paragraphs 7 and 8 above are without prejudice to Google’s discretion to comply with any specific request made by the Monitoring Trustee in accordance with paragraph 67 of the Commitments.” – Annex 4, Page 2.

“These latest Commitments from Google purport to ensure that Google’s promises will be closely monitored for the next five years. In fact they do nothing of the sort,” the letter concluded. “A close reading reveals that they explicitly allow Google to decide how, when and, indeed, whether the Internet giant will cooperate with the Commission’s duly appointed Monitoring Trustee. This is simply unacceptable. It in effect allows Google to act has its own Monitoring Trustee. Consumer Watchdog calls on the Commission to modify this deeply flawed proposed settlement.”